Simmons v Castle – the revised judgment

by Laurie Anstis on October 10, 2012

The Court of Appeal has today issued its revised judgment (pdf) in the case of Simmons v Castle, which deals with the 10% uplift in general damages (I’ve previously posted about its possible effect on employment law).

The core of the judgment is at its end, where the Lord Chief Justice substitutes the following for paragraphs 19 and 20 in the original judgment:

“Accordingly, we take this opportunity to declare that, with effect from 1 April 2013, the proper level of general damages in all civil claims for (i) pain and suffering, (ii) loss of amenity, (iii) physical inconvenience and discomfort, (iv) social discredit, (v) mental distress, or (vi) loss of society of relatives, will be 10% higher than previously, unless the claimant falls within section 44(6) of LASPO.”

Section 44(6) of LASPO is  a reference to a particular kind of conditional fee arrangement, not usually relevant in employment disputes.

There is some discussion in paragraphs 45 – 49 of the judgment as to what exactly the 10% increase is supposed to cover, and whether it is only supposed to cover tort claims. The Lord Chief Justice says:

“As to the types of damages which are covered by the 10% increase, we believe that the best guidance is to be found in Chapter 3 of McGregor on Damages (18th edition), which is concerned with “Non-Pecuniary Damages”. The chapter goes on to discuss four types of damage in relation to both tort and contract cases, namely “pain and suffering and loss of amenity”, “physical inconvenience and discomfort”, “social discredit”, and “mental distress”. In our view, it is those types of general damages which are to be subject to the 10% increase.”

Paragraph 3-011 in chapter 3 of McGregor on Damages expressly refers to injury to feelings awards in discrimination claims, so the revised judgment seems to have made it even more likely that this increase applies to injury to feelings awards in discrimination claims.

[Update 11 August 2014: In Cadogan Hotel v Ozog the EAT has confirmed that the Simmons v Castle uplift applies to injury to feelings awards in discrimination cases.]